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Lord Mackay of Ardbrecknish: My Lords, with the leave of the House, perhaps I may respond, although, frankly, I have nothing to add to the points that I made. One's impression of thin ice depends upon whether or not one is on it. I think that I am on pretty reasonable ice on this issue. The noble Baroness obviously disagrees.

The position is quite clear. First, I suspect that for most schemes the proposals will be perfectly satisfactory and there will be no need for postal returns, with the costs involved or of ballots, and so on. Secondly, if there are some problems, they may be minor and can be addressed. I should have thought that that was a much more reasonable way to proceed. The idea that we have people in embattled positions is perhaps dear to the mind of the noble Baroness who likes to paint everything fairly black or white. However, that idea seems pretty alien to what will occur when the consultation procedures take place. Perhaps minor or not significant amendments will make the scheme proposed by the employer satisfactory to his members. If it is not satisfactory, then it seems to me that the members have the right, if they wish, to call a ballot. If the employer is not prepared to move, then that ballot will go ahead and the members will be in a position to make whatever decision they will.

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I believe that we should stick to the position that I have outlined, which has support in the industry, and so on. The consultation procedures that I have mentioned and the statutory procedures that we have laid down, will I believe lead to a proper consultation with the members, and a proper conclusion. It will mean that those many schemes which are perfectly satisfactory to the members will not need to go to the expense of a ballot.

Baroness Hollis of Heigham: My Lords, I am sorry to turn the discussion into a Committee-style debate. However, I am even more baffled now by what the Minister says. If the employer produces a first scheme, the responses might in the normal process have triggered a ballot. However, the Minister says that such responses would be used by the employer to modify or tweak the scheme, in the light of the representations made. What happens then? Does the employer reissue the scheme before he goes to a ballot? Will it be an everlasting series of proposals by the employer? Will the employees vote on the modified scheme? It will be different from the scheme on which they called for a ballot in the first place.

The Minister needs to clarify the position. It seems as though people are being invited to ballot on proposals on which they were not balloted. Perhaps the Minister will enlarge further. The more he continues, the more he walks on quicksands. What will happen between the first and second ballot? The proposals put forward can be modified. What then will people believe that they are voting on? What chance will they have to consider the further modifications if the employer produces a second ballot paper on a quite different set of proposals from the first? I apologise, but the Minister really must clarify further.

Lord Mackay of Ardbrecknish: My Lords, if I have the leave of the House—it is beginning to look more like a Committee stage; we ought to have dealt with those issues then if that is what the noble Baroness wished—perhaps I may simply say this to her. It is difficult to envisage what the objection might be. It might not be a serious objection. It might be one on which the scheme can easily be amended. The employer will then have met the objections and the scheme will be satisfactory. That is perfectly sensible.

My recollection of the Bill—if I am wrong, I shall write to the noble Baroness—is that there are some time limits. As I think the noble Baroness suggests, if I understand her correctly, the employer could not string the process along for ever and a day so that he never got round either to having member-nominated trustees or to having his own proposal accepted. Although I cannot find the provision as quickly as I need, I am pretty certain that there are time limits. If there are not, I shall certainly write to the noble Baroness.

The safeguards are there; I do not think that we need to go to a ballot. I have made my point. The noble Baroness clearly wants ballots at every possible turn.

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She wants a ballot right at the beginning. I do not believe that that is necessary. I am afraid that there is just a bit of a division between us.

Baroness Hollis of Heigham: My Lords, the reason that we are treating this matter rather as we would in Committee—for which I beg the indulgence of the House—is that the Minister is producing arguments on Report that were never even mentioned in Committee. We have heard for the first time tonight that employers will have the right to modify what they propose to members between the first circulation of the information and the right to a ballot. It is the first time that we have heard of it. This is a significant change, so far as I am aware. I defer to the Minister.

Lord Mackay of Ardbrecknish: My Lords, I intervene for the last time. If the employers were not in a position to modify what they had proposed, there would be no point in their proposing it. The whole proposition is to ensure that the members are satisfied with what is being proposed.

Baroness Hollis of Heigham: My Lords, when the Minister reflects on the debate tonight, as I am sure he will, I hope that he will see that the further he goes, the more entangled—I really mean this—his argument has become. It was a pretty sorry argument. It is for that reason that I shall not press my amendment tonight: I hope that the Minister will come back to the House on this matter. He is in an impossible position. He faces a set of receding issues. However, with the leave of the House I should now like to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 47 and 48 not moved.]

Baroness Turner of Camden moved Amendment No. 49:

After Clause 15, insert the following new clause:

Protection against victimisation

(". In relation to a member-nominated trustee appointed under section 14, the Employment Protection (Consolidation) Act 1978 and the Trade Union and Labour Relations (Consolidation) Act 1992 (referred to in this section as "the 1992 Act") shall each have effect as if—
(a) the purposes specified in section 146(1) of the 1992 Act (action short of dismissal on grounds related to trade union membership or activities) included preventing or deterring him from carrying out any relevant functions as a trustee, or penalising him for doing so; and
(b) the reasons specified in section 152 of the 1992 Act (dismissal on grounds related to trade union membership or activities) included the reason that he had carried out, or proposed to carry out, his functions as a trustee.").

The noble Baroness said: My Lords, we are revisiting issues that we debated in Committee, when I am sure many noble Lords on all sides of the House were sympathetically inclined to the amendment that I moved. The Bill rightly gives a key role to trustees and in that regard it follows the recommendations of the Goode Report. It also envisages election or selection of employee trustees, as we know.

The duties and responsibilities of trustees are quite onerous, and we have to get the balance right to ensure that suitable employees are not frightened off. We have already discussed this point in connection with penalties

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and other matters. But if, added to that, trustees are to be concerned for their jobs if they attempt to do what they believe to be a proper task on behalf of the employees as a whole, it will be even more difficult to persuade the right type of people to come forward.

As I said in Committee, the late Robert Maxwell had employee trustees. But one cannot imagine that they would have felt able to stand up to the force of his dominant personality. Trustees are likely to be the first people to know if something has gone wrong or may be going wrong. A good trustee could well make himself or herself unpopular with the employer simply by asking too many questions deemed to be awkward. Trustees may make mistakes in good faith or out of naivety. But they must feel free to express a view without being fearful of the consequences. It is possible for employers to be quite vindictive, particularly if they have something to hide.

My amendment seeks to give extra protection against victimisation in such circumstances. It would mean that an employee trustee, if dismissed as he or she believes through endeavouring to exercise the trustee function effectively, would have the immediate protection of the 1978 Act without any qualifying service, the present period of two years being non-applicable in such circumstances. This could be quite important, since it is by no means certain that all trustees would have had two years' continuous service.

Secondly, such an individual would be entitled, if a claim to an industrial tribunal succeeded, to the maximum amount of compensation available. In Committee, the noble and learned Lord, Lord Hailsham, asked whether,

    "something could be put into the employment protection legislation that would put the burden of proof on the employer who wanted to disadvantage a person who happened to be a trustee of the scheme in the conditions of his employment to show that it was nothing to do with the way in which he had behaved as a trustee".—[Official Report, 13/2/95; col. 471.]

However, that is what my amendment does. It reverses the burden of proof.

In Committee, the Minister said that he thought I had intended my amendment to refer to Section 152 of the 1992 Act, and I agree. I therefore amended the wording appropriately. There was support in Committee from all sides of the Chamber; and the Minister himself seemed sympathetic, and promised to look at what had been said. I had hoped therefore that there would be a government amendment. But as there is not, I wonder whether I can, this time round, persuade the Minister to accept this amendment. I beg to move.

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